DR. ASWATHY R. S. KARTHIKA & ORS. versus DR. ARCHANA M. & ORS.

Citation: [2020] 6 S.C.R. 955 · Decided: 29-07-2020 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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955
DR. ASWATHY R. S. KARTHIKA & ORS.
v.
DR. ARCHANA M. & ORS.
(Civil Appeal No. 2796 of 2020)
JULY 29, 2020
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Service Law:
Reservation – Shortfall in – Adjustment of – ‘Hindu Nadar
Community’ included in ‘Other Backward Classes’ in the State of
Kerala by Circular dated 21.11.2009 – The decision was
incorporated in State Subordinate Service Rules by Notification
dated 3.8.2010 with retrospective effect from 21.11.2009 providing
1% reservation to Hindu Nadar Community – Public Service
Commission by a Circular dated 31.8.2010 provided that the shortfall
in reservation in the advices made during the period from
21.11.2009 to 31.8.2010 shall be adjusted in the future vacancies
without disturbing the advices already made – In Annexure attached
to Part II of Kerala State and Subordinate Service Rules, 1958,
Explanation II was inserted whereby it was provided that shortfall
in reservation occurred in the lists published by the Commission on
or after 21.11.2009 during the period from 21.11.2009 till the date
of publication of amendment to the Rules, to be adjusted in future
vacancies – Applications invited for appointment to the post of
Medical Officer (Homeo) by Notification dated 15.12.2012 –
Pursuant to the Notification dated 15.12.2012, rank list published
on 3.8.2012 – Appellants-candidates appearing at S. Nos. 3, 4, 5
and 6 of the list of Hindu Nadar Community – Application by
appellants before State Administrative Tribunal taking the plea that
shortfall in reservation of Hindu Nadar Community in the advices
made by Service Commission on or after 21.11.2009 was required
to be made good in future vacancies without disturbing the advices
already made – Application was allowed by the Tribunal – High
Court set aside the order of Tribunal – Appeal to Supreme Court –
Held: The posts available for Hindu Nadar Community after
21.11.2009 are required to be provided to them – The Service
Commission has rightly admitted that r.15(a) of Service Rules is
inapplicable as it is neither a case of temporary passing over of
[2020] 6 S.C.R. 955
955
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
vacancies nor the case of non-availability of candidates – The rank
list which was operative till 03.10.2013 did not reflect the policy of
reservation – Order of the Tribunal is restored.
Allowing the appeals, the Court
HELD: 1. The Circular of the Commission and the
Explanation II inserted by amending the Rules, provide that the
shortfall in reservation in the advices made during the period
from 21.11.2009 to the date of issue of the Circular were to be
adjusted in future vacancies without disturbing the advices already
made. It did not mean that the vacancies arising after the
amendment were not required to be filled up as per the merit in
the rank list. The posts available for the Hindu Nadar community
after 21.11.2009 are required to be provided to them. The
Commission has rightly admitted in the written submissions that
Rule 15(a) of the Kerala State and Subordinate Service Rules,
1958 is inapplicable in the present case, as it is not a case of
temporary passing over of vacancies nor the case of non-
availability of candidates. Furthermore, the rank list was operative
till 3.10.2013 and had to reflect the policy of reservation, but did
not do so. [Para 22][965-E-G]
2. The entire submission on behalf of the private
respondents are misconceived and untenable. The appellants are
not claiming any right whatsoever on the basis of the rank list
published on 27.7.2009. The claim of their appointment is in
respect of the vacancies which arose after 21.11.2009 when the
Rules were amended and reservations for the Hindu Nadar
community was provided. The Commission has not taken into
consideration, posts which have fallen vacant from the date of
the amendment of the Rules till the date of the appointments
advised from the rank list dated 3.8.2015. The Commission has
advised only one candidate from the Hindu Nadar Community to
be appointed following Roster Point No. 60 out of the 133
candidates who were advised for appointment. It did not take
into consideration the vacancies which had arisen after the
amendment of the Rules. Such vacancies could have been filled
up only on the basis of rank list published in the year 2015. [Para
23][965-G-H; 966-A-B]
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957
DR. ASWATHY R.S. KARTHIKA AND ORS. v.
DR. ARCHANA M. AND ORS.
3. Therefore, the argument of delay or wa
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